Defenders ask legislators for juvenile law changes

Public defender’s office wants ‘Romeo and Juliet’ exemption to be added to other charges

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Teen sex and Georgia law

What is a “Romeo and Juliet” provision?

Georgia’s age of consent is 16. A person 15 or younger cannot legally give consent to sex, up to and including intercourse. Teens are not subject to lengthy prison sentences for engaging in most consensual sexual activities with other teens if they fit certain age parameters, the “Romeo and Juliet” exception.

Wilson v. State

The case of Georgia teen Genarlow Wilson prompted applying the “Romeo and Juliet” provision to sex charges beyond rape. Wilson, 17, was convicted of aggravated child molestation after he engaged in oral sex with a 15-year-old in 2005, which then carried a mandatory penalty of 10 years’ imprisonment (today, a 25-year minimum). Because the case involved oral sex, the consent of the girl was not then legally relevant.

Where can it apply?

“Romeo and Juliet” clauses apply to statutory rape, aggravated child molestation, aggravated sodomy and enticing a child for indecent purposes, lowering the offense from a felony to a misdemeanor. The victim must have reached a certain age (13 or 14, depending on the charge). The perpetrator must be age 18 or younger, and no more than four years older than the victim.

What is aggravated sexual battery?

A person commits aggravated sexual battery when he or she intentionally penetrates another person with a foreign object (anything other than a sexual organ) without their consent. A conviction carries a mandatory minimum sentence of 25 years and a maximum life sentence, followed by probation for life. There is currently no “Romeo and Juliet” exemption for aggravated sexual battery.

Source: Georgia criminal statutes

Although legislative changes to the juvenile code have helped some teen offenders, public defenders hope legislators will consider another change in the criminal code.

The Hall County Office of the Public Defender recently asked legislators to add a “Romeo and Juliet” exemption to the charges of aggravated sexual battery, aggravated child molestation and aggravated sodomy. Such an exemption would make those crimes a misdemeanor, rather than a felony, in some circumstances, such as a case in which a 17-year-old was charged with aggravated sexual battery against a 14- or 15-year-old.

“One of the things that we were looking at is aggravated sexual battery,” said Public Defender Brad Morris, who heads up the Northeastern Judicial Circuit office in Gainesville. “They didn’t put the ‘Romeo and Juliet’ thing in there as far as the age and the difference in ages.”

A child the age of 15 or younger cannot legally give consent. However, for some teens charged with sex with a child below the age of consent, a conviction is a misdemeanor and the perpetrator is sentenced to a maximum 12 months in jail. Exemptions are in the code for statutory rape, aggravated child molestation, enticing a child for indecent purposes and aggravated sodomy.

There is no such clause for aggravated sexual battery, Morris said.

“If some kid is dating a girl and rubs her the wrong way ... he gets 25 years no parole,” Morris said. “We’re talking about high school kids dating high school kids.”

But the details can be confusing.

Rep. Lee Hawkins, R-Gainesville, who has in the past called for mandatory minimum sentencing reform, said he was left with a different perception from district attorneys.

“Part of the problem we’ve got is, when I talk with folks in the district attorney’s office, they’re telling me something different: ‘Oh, that can’t happen unless, this, this and this. You’re not hearing the whole story,’” he said.

Morris disagreed.

“I think people would be shocked,” he said.

There was strong disagreement from District Attorney Lee Darragh, who is not in favor of the “Romeo and Juliet” provisions.

“I personally oppose all of the ‘Romeo and Juliet’ provisions in place now and proposed in the future,” Darragh said. “There ought to be a bright line as to age of consent. Even younger people are capable of knowing where that is and are capable of avoiding those situations.”

“Children under 16 ought to be protected, even in circumstances where there may be actual consent — though not legal consent — from the child,” he added.

Darragh said that in the case of aggravated sexual battery and sexual battery, there is a “without consent” element, but that neither statute has a “with force and against the will” element, such as the charge of rape. But if the victim is younger than 16, “without consent” is automatic.

He said if the legislature were to add an age provision to aggravated sexual battery, special care needed to be taken that victims who are not actually consenting — regardless of the relative age of the perpetrator — are not exempted from steeper sentencing.

“There are too many situations in which a victim being forced to perform sodomy, for example, is being treated in other places in the state as just a misdemeanor victim, where as a victim of age 16 or older is the victim of a felony,” Darragh said.

Nicki Vaughan, chief assistant Public Defender, praised juvenile justice reforms that have scaled back some punitive measures on teens.

Although aggravated sexual battery, aggravated child molestation and aggravated sodomy are all “seven deadly sin” charges, the new juvenile code will allow a juvenile judge to hear those cases, rather than a Superior Court judge.

“(Those) will be able to be transferred by the court, after hearing it, to juvenile court, effective Jan. 1. And that’s a wonderful law,” Vaughan said. “It’s actually going back to the way the law was in 1996, so it’s not anything new.”

“Even so, with aggravated child molestation and aggravated sodomy, there is a ‘Romeo and Juliet’ provision ... and it’s not subject to the stringent sentences,” she added.

Morris said steep mandatory minimum sentencing exacerbated the issue.

Clients in those situations make decisions based on whether to take a plea deal with a moderate amount of prison time, or have a jury decide, risking 25 years imprisonment, no parole. The vast majority of the time, they choose to plea, he said.

“It’s not like our judges aren’t tough enough, but when you take away a judges’ choice, it’s a real problem,” Morris said.